13 November 2015: The crowd consists primarily of women, but several men are also present. They are young and old, some with children and some needing help to walk. A quick ear to the conversations flying around indicates that they are largely Tamil speaking. In certain areas, there are Muslim women and in others Sinhalese women, though fewer in number. They are all united in their search for missing loved ones.
These women wait for their turn, sometimes for hours, to tell their story before the Presidential Commission to Investigate into Cases of Missing Persons – often referred to as the Commission of Inquiry or COI. Since 2013, the COI has been looking into cases of enforced disappearances during the Sri Lankan civil war. It has been mandated to address cases between 1983 and 2009. The 3-member Commission began hearing complaints in Kilinochchi in January 2014.
“My son was taken from Pesalai in 1989. He was 26 at the time, after his A/Ls he went in search of jobs to Colombo and stayed with my sister-in-law. He sent word through a lorry driver saying he needs 5000 to go abroad but my son didn’t go to claim the money. I heard from relations that Army had taken him in and put him in Magazine prison. I went there, wrote down his name and asked them to show him to me but they said no such person has been brought there. I then went to Bogambara prison; same reply. Welikada prison; same reply. Thalaimannar prison; same reply. I finally reported the incident.”
The response to the call for complaints was overwhelming; thousands of citizens came forward with cases of missing loved ones. Many of the complainants had gone before several state initiatives including previous commissions. With the overwhelming number of complaints made and the need for more time for investigations and inquiries, the Commission’s mandate was extended till August 2014.
Following the extension to the Commission’s mandate, another amendment was made regarding the period they were authorised to investigate – the Gazette provided that they would investigate cases that had occurred between 1st January 1983 and 19th May 2009.
July 2014 saw a further expansion of the Commission’s mandate; ‘to include inquiring into a wide range of issues spanning from violations of International Humanitarian Law (IHL) and International Human Rights Law (IHRL) including the recruitment of child soldiers and suicide attacks, to the criminality of financial and other resources obtained by the LTTE.’
CPA initially expressed concerns at this stage when the expanded mandate was presented, stating that it ‘fears for the integrity of the Commission, in particular, that its primary task of investigating and inquiring into the thousands of missing persons in Sri Lanka will be severely curtailed by the present gazette.’ [Read the statement in full.]
‘We were crossing from Mullivaikkal to Vattuvaikkal point. The Army stopped my son. I wanted to take him with me, but the Army said they will inquire and send him back, so we trusted what they said. We were taken in a van and dropped at the camp. Until now my son is missing. My son wasn’t involved in the movement, he came fishing with me. Is is safe with the Army around? I don’t know…..’
At the same time an Advisory Council was appointed to advise the Commission. Issues were raised as to the independence of this Council and questions still remain as to the nature of the work it set out to do and how this work will support that of the Commission.
Concerns were raised by CPA and other members of the civil society on the appointment of Sir Desmond de Silva to this advisory panel, claiming that it ‘further discredited a Commission of Inquiry that has failed to earn the confidence of victims and overburdened it with a mandate that was meant to address the overwhelming cases of missing persons from across Sri Lanka, raising serious questions about the willingness of the government to address the issue of enforced disappearances.’ [Read the statement in full]
Though the mandate of this Council was not made known, their report was made public at the end of October – read it in full here.
“He went missing from the Savanagara area in 1994; 3 others had joined him and they had gone fishing. They were coming down the road when they went missing. Army and terrorists were both moving around the area – I don’t know who to blame. I went to 3 LTTE camps in Mannar looking for him. Those at the LTTE camp during Chandrika’s time told me that there’s a UNP government and that I should go ask them. We were told they are free to move around and to look for him ourselves. We searched first at the Thalaimannar camp and then at the Alayadivembu camp. During our search, we heard that there was a problem between Prabhakaran and Karuna and we were ordered to go home.”
“She was 18 at the time and going to school when she went missing in 2006. It was a very problematic time; she was taken by force on her way home, by the LTTE in June that year. We were also displaced, but I met her in Kilinochchci; she said she was alright and not to worry about her. She was studying computing under the LTTE. She came home once after being taken. We ended up at Pudumatalan refugee camp. My other daughter got
wounded in a shell attack and I went with her to hospital. It was under LTTE control and there was shelling so they shifted us to Mannar hospital for treatment. At Omanthai checkpoint, my eldest daughter had surrendered – the village girls had seen and spoken to her. I want her back. My other wounded daughter was sent to Dambulla hospital, but since it was a military hospital I wasn’t allowed to see her. Maxwell [Paranagama] said he will check with the hospital records but I have heard nothing.”
An interim report by the Commission was submitted to the President in March 2015 but this report was not made public until very recently. Initially, a statement on the report was sent, to the media, stating that responsibility for 60% of the cases in the Northern Province were attributed to the LTTE, 30% to the security forces, 5% to armed groups and 5% to unknown groups.
CPA wrote to the commission in this regard, stating ‘the lack of transparency regarding this report which one hopes sheds light on the progress of the work of the Commission.’ [Read full statement here.]
The sittings after the submission of this report saw the addition of two more commissioners to hear the ever-increasing number of complaints made by affected citizens.
“There are 5 camps in that area. Whoever goes on that road, they must pass this area. As you pass the camps and go through the Sinhala area, there are cut outs, road blocks and a Police station. Maoya junction, we were able to search upto there but not further. Records showed that my son had signed in at one check point and the police are aware of this incident but no one knows what happened after that. My son’s telephone is still functioning.”
Each Commission hearing witnessed hundreds of women coming before sittings, many facing hardships that range from the economic to the physical and emotional. Some make long journeys just to be heard by the Commission and to continue their search for missing loved ones. While many women recount
narratives of missing male family members, there are also men who come before the commission in search of missing female family members. Details available also range from specific names of people in power and camps to where people were taken, to anecdotes such as ‘he was on his way home and he was taken’ or ‘he left for school and never came back.’
An Investigation Team was appointed earlier this year, but its role and functions regarding investigation of cases has not been made known, though Commissioners assure that they have commenced work.
“She was 18 at the time, when the LTTE took her. I saw her at the Vellipuram but that was the last time. I went looking for her when I heard that my child was at the detention camp, my only girl. We couldn’t find her. So far I haven’t gotten any information. I want my child back; I plead with you in all affection, please find my child. No, my housing and livelihood can wait – my search is for my child.’
Further, as the Commission heard about cases across the Northern and Eastern provinces, observers noted errors in the translation.
CPA noted ‘translators’ and the Commission’s lack of contextual knowledge of the affected areas and key issues related to the incidents before the Commission. [Read the report here.]
CPA questioned whether ‘the failure to genuinely address the grievances of over 19,000 complainants a stark reminder of the flaws in and failures of domestic processes that are meant to investigate violations?’ [Read the statement in full here.]
‘My husband was 25 years old at the time. One day, armed Air Force personnel took him away for inquiries – they were in civilian clothing. A Buddhist monk at the China Bay temple helped us – he went and saw that he was being kept in the China Bay Air Force camp. The next time we went there, we were told he had been taken to the Plantain Point Army Camp but when we inquired there, they denied it. I reported it to the ICRC
and the HRC. Later, officers came home to make inquiries and I went to the 4th Floor for this. I faced so many inquiries yet nothing happened. I’m here to request his death certificate and due compensation.’
At present, a death certificate is required to claim compensation. This has resulted in many families not having a choice and having to accept missing loved ones as dead and requesting that the issuing of the death certificate be expedited to ensure they are able to obtain assistance. The economic situation for most families in the North and East is difficult – most work in agriculture and in small shops to make ends meet. Most accept a death certificate purely to receive state social welfare payments that will help them in their daily lives.
CPA proposed a policy recommendation – the issuing of a ‘Certificate of Absence’ to families of the disappeared. This would be ‘an official document issued to family members of the disappeared persons, affirming their status as “missing” as opposed to “deceased.” This option has been used in countries that experienced high numbers of disappearances, based on the perception that it is better tailored to balance family members’ emotional and psychological needs without dismissing the need for active investigation into cases of disappearances.’ [Read full paper here.]
This recommendation was well received and during the recently concluded sessions of the United Nations Human Rights Council in Geneva, the Government of Sri Lanka stated that it would issue this certificate to the families of the missing. Soon thereafter, a cabinet paper proposing the introduction of such certificates was approved by the cabinet based on CPA’s recommendations.
Civil society across Sri Lanka including groups from the North and East have criticized the working methods of the Commission and some have engaged in protests. There have also been several calls to expedite investigations on cases of enforced disappearances.
The government mentioned plans to abolish the Commission, but Chairman Maxwell Paranagama has stated that it will continue investigating cases. This
statement was followed by the release of the Commission’s final report in Mid-October and the news that a round of sittings has been scheduled to take place in Jaffna, mid-November.
The UNHRC resolution, co-sponsored by Sri Lanka, also welcomed the suggestion to establish an ‘Office of Missing Persons’, although its tasks and responsibilities have not been made known to the public.
Consultation with civil society and families of the disappeared, essential to making this a victim-centric mechanism of transitional justice, is key but yet to materialize.